Tuesday, June 30, 2009

SCOTUS: Lab Reports Testimonial Under Crawford; Reasoning Applies Broadly to Other Documents Prepared Solely for Use at Trial

Melendez-Diaz v. Massachusetts, No. 07-591 (U.S. June 25, 2009)

Although it took the Supreme Court a long time to get this opinion out (the case was argued last November), it was worth the wait. The issue, as you'll recall, was "[w]hether a state forensic analyst's laboratory report prepared for use in a criminal prosecution is 'testimonial' evidence subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004)." The report at issue identified the substance seized from the defendant as cocaine. The Court, in an opinion by Justice Scalia for a 5-Justice majority, held that such reports are testimonial. But the case isn't just about lab reports; as you'll see, its reasoning applies to a broad range of documents that are prepared to establish facts at trial.

The question, according to the majority, was an easy one "involv[ing] little more than the application of our holding in Crawford[.]" The question was so easy, in fact, that the analysis covers less than three full pages. Crawford described a "core class of testimonial statements":
ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.
Lab reports fit that description to a "T":
There is little doubt that the documents at issue in this case fall within the “core class of testimonial statements” thus described. Our description of that category mentions affidavits twice. The documents at issue here, while denominated by Massachusetts law “certificates,” are quite plainly affidavits: “declaration[s] of facts written down and sworn to by the declarant before an officer authorized to administer oaths.” They are incontrovertibly a “‘solemn declaration or affirmation made for the purpose of establishing or proving some fact.’” The fact in question is that the substance found in the possession of Melendez-Diaz and his codefendants was, as the prosecution claimed, cocaine—the precise testimony the analysts would be expected to provide if called at trial. The “certificates” are functionally identical to live, in-court testimony, doing “precisely what a witness does on direct examination.”

Here, moreover, not only were the affidavits “‘made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,’” but under Massachusetts law the sole purpose of the affidavits was to provide “prima facie evidence of the composition, quality, and the net weight” of the analyzed substance. We can safely assume that the analysts were aware of the affidavits’ evidentiary purpose, since that purpose—as stated in the relevant state-law provision—was reprinted on the affidavits themselves.
(cites omitted). Thus, "under our decision in Crawford the analysts’ affidavits were testimonial statements, and the analysts were 'witnesses' for purposes of the Sixth Amendment."

The bulk of the opinion is devoted to refuting numerous arguments raised by the state and the dissenters (Justice Kennedy, joined by the Chief, Breyer, and Alito). The majority said:
  • Lab techs aren't exempt from cross-examination simply because their testimony is the result of supposedly neutral, scientific testing. As the recent report from the National Academy of Sciences reveals, forensic labs are subject to pressure from law enforcement, and there are serious reliability problems with many types of forensic evidence. "[T]here is little reason to believe that confrontation will be useless in testing analysts' honesty, proficiency, and methodology—the features that are commonly the focus in the cross-examination of experts."
  • Lab reports are not business or public records—categories of documents Crawford suggested might not be testimonial—because they are produced for trial. "Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because—having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial."
  • The fact that the defendant can subpoena the lab tech does not vitiate the violation in introducing the lab report. "Converting the prosecution's duty under the Confrontation Clause into the defendant's privilege under state law or the Compulsory Process Clause shifts the consequence of adverse-witness no-shows from the State to the accused. More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court. Its value to the defendant is not replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affiants if he chooses."
  • The possibility that this ruling will create more hassles for the Government is not sufficient reason to hold otherwise. "The Confrontation Clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination. The Confrontation Clause—like those other constitutional provisions—is binding, and we may not disregard it at our convenience."
Although the majority handily disposed of the dissent's protests, the dissenter's attitude towards the issue remains troubling. To them, requiring live-witness testimony rather than lab reports will impose a monumental burden on prosecutors, resulting in many defendants walking on a "technicality" when the witness, for whatever reason, is unable to testify in court, leaving the Government without sufficient proof on an element of an offense. That's right: four Justices of the Supreme Court see the Government's failure to prove its case—due to its failure to marshal and present its witnesses at trial—as a "technicality."

Underlying this attitude seems to be the view that that lab techs and forensic tests are by and large neutral and reliable, such that cross-examination is largely useless. But what about that NAS report demonstrating otherwise?
That report is not directed to this Court, but rather to the elected representatives in Congress and the state legislatures, who, unlike Members of this Court, have the power and competence to determine whether scientific tests are unreliable and, if so, whether testimony is the proper solution to the problem.
Of course, if courts lack such power and competence, then why we have Daubert and Rule 702?

There's more to criticize in the dissent—including its strident tone—but I can already sense some folks in the audience are saying, "The dissent's troubling, but so what? It is the dissent, after all." Well, consider that the day after it issued the opinion in Melendez-Diaz, the Court granted cert in a case presenting this question:
If a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?
"Whoa, hold on!", you say. "Didn't the Melendez-Diaz majority address this issue and explain that the Compulsory Process Clause doesn't relieve the Government of its burden under the Confrontation Clause?" Why, yes. It did. But keep in mind that Justice Souter, who was in the majority, has retired from the Court. His replacement may not share his views on this issue. And given the dissenters' strong views on the subject, you have to wonder, as does a post at SCOTUSblog, "Is Melendez-Diaz already endangered?"

But, hey, we're not there yet. So let's end things on a cheerful note: in a future post I'll explain how Melendez-Diaz has abrogated Fifth Circuit case law permitting the Government to rely on certificates of non-existence of record to prove the no-permission-to-reapply-for-admission element in illegal reentry cases.



Post a Comment

<< Home